Employee who did not disclose previous gross misconduct was fairly dismissed

An employee who was dismissed for not disclosing a dismissal for gross misconduct at a previous role was fairly dismissed from his new role after failing to declare the incident, ruled an Employment Appeal Tribunal (EAT) in the case of Easton v Border Force (2025) recently.

Background

Mr Easton had worked for the Home Office from 2002 until 2016, and then went onto join the Department for Work and Pensions (DWP) from 2016 “to current”, as described on his job application to the UK Border Force (part of the Home Office) in January 2020. Mr Easton had failed to disclose a three month period of unemployment between finishing work at the Home Office and commencing employment at the DWP.

The gap in Mr Easton’s unemployment was due to the fact he had been dismissed from his employment at the Home Office for gross misconduct in June 2016. Mr Easton brought employment claims against his employer in 2016, which was resolved by way of settlement agreement in which he received a “significant sum, not because the decision to dismiss was wrong but because managers had not followed the [anti-disability discrimination] procedure”. However, Mr Easton failed to declare this on his job application to the UK Border Force, for which he was a successful candidate.

In May 2020, the Home Office became aware of Mr Easton’s previous dismissal for gross misconduct. The nature of the gross misconduct centred around inappropriate behaviour and issues regarding his temper. The Home Office launched a disciplinary investigation into Mr Easton in response. The Home Office alleged that Mr Easton failed to disclose material details within his job application, namely that he had:

• Previously been dismissed by the Home Office for gross misconduct
• A serious underlying medical condition which would potentially impact on his ability to carry out the position for which he applied.

Mr Easton was subsequently suspended in August 2020 and he was dismissed from the Home Office with immediate effect in November 2020. Mr Easton appealed against this decision, but his appeal was dismissed. Mr Easton subsequently bought a claim to the Tribunal in January 2021 alleging unfair dismissal, discrimination (on grounds of age and/or disability and detriment due to making a protected disclosure) and victimisation. In relation to the unfair dismissal claim, the Tribunal disagreed with Mr Easton and concluded that his dismissal was fair and the investigation, appeal and disciplinary process all fell within a “band of reasonable responses”. Mr Easton appealed the decision of the Tribunal.

The EAT’s Decision

Mr Easton was granted permission to appeal on the grounds that the application form when he applied for the job at the Home Office Border Force made “no mention of providing the reasons for leaving previous employment” and “the online form simply stated, ‘employment history’ with an empty box for completion as candidates see fit”.

Mr Easton relied on the decision in Cheltenham Borough Council v Laird (2009) whereby it was held that “it is the employer’s responsibility to ensure application forms are clear and unequivocal, rather than expecting candidates to compensate for their ambiguity”. He also relied on the fact that the Home Office “was aware of the circumstances because it was [the Respondent] that had employed (and dismissed him) previously”. However, the EAT Judge, Judge Crowther, rejected this point and stated, “as to the suggestion that the claimant need not have disclosed the relevant information, because the respondent was aware of his dismissal, [this] does not assist [his] case”.

Judge Crowther went onto reject Mr Easton’s appeal and concluded “the fact that the Respondent might have found out by other means (and did ultimately do so) does not take away from the Claimant’s obligations under his declaration in the application form not to withhold relevant information. The failure to disclose deprived the Respondent of the opportunity of exploring the issue at the interview stage and forming its own judgment as to whether employment should be offered considering the full and true facts”.

Key take-aways for Employers

• Make applicants aware that they must disclose any previous dismissals from employment and the reasons for those dismissals within a job application form
• Make sure the request to include such information within the application form is clear and in plain English.

If you require any assistance with any of the issues mentioned in this article, do not hesitate to contact the Employment team at Thomson Snell & Passmore.